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Sylvester v. State10/27/2000
Appeal from the Circuit Court for Marion County, William T. Swigert, Judge.
Roosevelt Sylvester appeals his conviction and sentence for felony driving with license suspended (DWLS). We reverse.
After the jury returned a verdict of guilty of DWLS and was discharged, the state re-opened its case and introduced a certified copy of a driving record showing five previous convictions for DWLS. The defense objected to the introduction of the record but was overruled. The state rested and defense counsel moved for a judgment of acquittal, contending that the driving record was insufficient evidence to prove beyond a reasonable doubt that Sylvester had the prior convictions necessary to make the DWLS charge a felony. The judge denied the motion and found that Sylvester had the requisite prior convictions to make his DWLS a felony.
In Kohler v. State, 534 So. 2d 1213 (Fla. 5th DCA 1988), abrogation recognized by, State v. Pelicane, 729 So. 2d 534 (Fla. 3d DCA 1999), we held that a certified driving record could be used to prove prior convictions in a case of felony DUI. Kohler, 534 So. 2d at 1213. Kohler relied on Pritchard v. State, 528 So. 2d 1272 (Fla. 1st DCA 1988), disapproved, State v. Rodriguez, 575 So. 2d 1262 (Fla. 1991), which held that where the burden of proof is the preponderance of the evidence, the state may prove the prior DUIs with records that are not certified copies of judgments and convictions. Id. at 1273.
Based on State v. Harbaugh, 754 So. 2d 691 (Fla. 2000) and other recent cases, however, prior convictions must be established not by the preponderance of the evidence, but by proof beyond a reasonable doubt. In Harbaugh, the court noted that every element of felony DUI, including the prior convictions, must be proven beyond a reasonable doubt. Id. Although the issue in Harbaugh was the bifurcation of a felony DUI trial -- not the issue here -- the supreme court confirmed in Harbaugh that when prior convictions constitute an element of the charged crime, the prior convictions must be proven beyond a reasonable doubt. See also, Rodriguez, 575 So. 2d at 1266 (holding that a computerized driving record is too unreliable to be proof beyond a reasonable doubt, and pointing out that Pritchard apparently relied on the lesser standard); but cf. Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime . . . must be . . . proved beyond a reasonable doubt")(emphasis added).
In the instant case, the computerized driving record did not prove the historical fact of the prior convictions, nor did it serve to link Sylvester to the listed convictions. See Coyne v. State, 25 Fla. Law Weekly D2063 (Fla. 4th DCA Aug. 30, 2000). As the Third District Court of Appeal explained in Pelicane:
The probative value of this evidence [the driving record] lies primarily in proving that prior conviction exists; not in linking the defendant to the conviction. The evidence only tends to link the defendant to the conviction by the fact that the name on the docket sheet matches the defendant's name. This is clearly insufficient. Pelicane, 729 So. 2d at 535. Cf. Killingsworth v. State, 584 So. 2d 647, 648 (Fla. 1st DCA 1991)("Although the historical fact of a prior felony conviction can be proved by introducing a certified copy of a prior felony judgment . . . mere identity between the name appearing on the prior judgment and the name of the defendant on trial does not satisfy the state's obligation to present affirmative evidence that they are the same person").
It is true, as the dissent states, that there is evidence in the record that Sylvester's date
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